Does the Planet Stand a Better Chance in Court?
A Tide of Litigation is Coming for Climate Change
Seeing as I’m a lawyer, it would be remiss for me to ignore law as part of the potential climate fix. I’ve noted it would be long and hard to get nations to agree on strong new treaties, much less agree that human rights law entails obligations to people in other countries. National and local legislation is more promising, but still difficult to pass, and executive action, even when powerful, can be quickly reversed in industry’s favor when administrations change. On the other hand, verdicts and judicial interpretation can come relatively quickly, and their deterrent value can last a good while.
One thing that human rights activists tend to be good at is suing. Impact litigation vindicates and remedies the actual victims, but also creates legal precedents and principles that powerful malefactors (or really, their law firms) have to take into account. It also requires a great deal less persuasion than, say, legislation, much less international treaty-making. You only need to convince a few judges, or maybe a jury. And the inequality of arms isn’t quite as bad as in the political arena — impact litigation tends to attract talented lawyers, even if corporations and the state have far more resources.
You need to find a law that was violated to go to court. When vindicating human rights, the first instinct is to look for a crime. Criminal law, as an extreme condemnation, seems to fit extreme violations of life and liberty. It exerts a powerful social stigma, swiftly changing how the actions of the powerful are perceived. Think of the symbolic force of Donald Trump’s recent New York arraignment — we could debate the strength of the legal case until the cows come home, but no one thinks being arraigned for paying off a porn star is a good look to emulate.
Human rights activists just love a new crime — I can vouch for this, as someone who participated in the negotiations for the International Criminal Court (ICC). Proposals for an international crime of mass damage and destruction to the environment or an ecosystem have been circulating since the Vietnam War and the use of napalm as a defoliant. A Yale biology professor, Arthur W. Galston, coined the term “ecocide,” a direct play on the term “genocide,” and it quickly was taken up by lawyers and diplomats, most recently as an effort to include it as an amendment to the Rome Statute of the ICC in 2021. Although several states and the European Parliament support expanding the ICC’s jurisdiction this way, there are limits on how useful this would be. Its statute does not cover the liability of corporations, and some of the most significant global polluters do not accept its jurisdiction — including the US, Russia, China, and India. If the ICC push fails, sympathetic nations could negotiate a separate treaty on ecocide, applying it to corporations, but the likelihood of gaining the acceptance of major polluting nations seems distant.
While ecocide as a crime has gained little traction in the U.S., it has entered the legal systems of quite a few other nations, particularly those of the former Soviet Union — including Ukraine, which has begun investigating Russia’s widespread environmental depredations during the war. Belgium is also considering incorporating the crime into its laws, and more states may follow if the ICC push gains some force (especially as ICC jurisdiction over a case depends on a member state being unable or unwilling to prosecute). Efforts to draft model definitions of the crime could considerably aid national incorporation and global convergence on a definition — and that will in turn encourage states to extradite defendants.
Nonetheless, as dramatic and stigmatizing as ecocide sounds, criminal prosecutions are likely to be rare, and rarely successful, for many reasons. Chief among them is proving some degree of actual intent on the part of the defendant. Then there’s gathering persuasive evidence of causation, often from other countries, not to mention the heavy burden of proof — beyond a reasonable doubt. So, while ecocide has symbolic weight and some deterrent value, it is probably not at the top of the list as far as legal solutions go. Far more actions have been brought to impose civil liability on corporations or to seek injunctions to compel government action.
Tort law, which determines liability for harm exclusively and proximately caused by the defendant to the plaintiff, seems a poor fit for the global scourge of climate change. Indeed, in 2011 Yale Law professor Douglas Kysar wrote:
[D]iffuse and disparate in origin, lagged and latticed in effect, anthropogenic greenhouse gas emissions represent the paradigmatic anti-tort, a collective action problem so pervasive and so complicated as to render at once both all of us and none of us responsible.[1]
And so far, very few tort cases have prevailed, though they continue to be brought in various jurisdictions. Plaintiffs often do not prove causation with sufficient particularity, using the latest scientific methods for showing weather events are due to climate change, or fail to establish a duty of care on the part of private defendants.
Fortunately, other legal theories are available and producing results, particularly in Europe. One type is suing the government to enforce its climate commitments or to require it to meet its duty to provide adaptation and mitigation measures, as in the landmark Urgenda case. Another successful strategy has been suing corporations on false or misleading statements or “greenwashing” on consumer protection grounds. In the U.S., municipalities are suing corporations to recoup the costs of adaptation measures in state courts. The right to a healthy environment and other human rights have provided a basis for legal redress in some cases. And young people often have stood as plaintiffs, arguing that the government’s failure to restrict emissions harms their future and their rights.
One thing is clear: climate litigation is increasing exponentially, and steadily chipping away at the impunity that major polluters have enjoyed. And even when it is not successful, it is causing an attitude shift in society, politics, and corporate boardrooms. An idea that seemed far-fetched only a few years ago is leveraging the public and the courts against recalcitrant governments and industries. In the process, these cases are gradually bending the law to be more responsive to the rights of future generations — an approach the human rights movement should embrace and pursue.
[1] Kysar, Douglas A. “What Climate change Can Do About Tort Law,” Environmental Law 41, no. 1 (2011): 1–71. http://www.jstor.org/stable/43267360.
Dinah PoKempner is a bar registered, accomplished, and published expert in international law, human rights, and organizational management. Read more of Dinah’s work on Twitter, LinkedIn, and DinahPoKempner.com
